J-S89008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY WRIGHT,

Appellant No. 1014 EDA 2016

Appeal from the PCRA Order February 4, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0806301-2004

BEFORE: SHOGAN, MOULTON, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: Filed January 20, 2017

Appellant, Anthony Wright, appeals from the order denying his petition 

filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. We affirm.

The PCRA court summarized the factual and procedural history of this 

case as follows:

[Appellant] was convicted of third-degree murder, violating 

the Uniform Firearms Act, possessing an instrument of crime, 

and aggravated assault following a waiver trial before this Court 

that took place during the summer of 2007. These convictions 

arose out of an incident that occurred on June 27, 2004. On 

that day [Appellant] and [Thomas Reid] walked past four 

individuals who were on the porch of a row home: Michael 

Robertson, Cortez Pryor, and Andre and Anthony Bowie. At the 

time [Appellant] was armed with a .38 caliber revolver. As 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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[Appellant] and Reid walked in front of the house, Anthony 

Bowie said to them, “what the fuck are you looking at?” The two 

sets of men exchanged words as they approached one another. 

[Appellant] then pulled out his revolver, causing someone to say 

“yo, chill, we don’t have to go there, we don’t have to do this, 

chill.” Anthony Bowie then began pushing Andre away from 

[Appellant] and then asked [Appellant] to put the weapon away. 

[Appellant] ignored the request and began firing at the Bowie 

group, all of whom began running away. During the incident 

Andre Bowie was shot in the chest and died that day. Anthony 

Bowie and Robertson were also shot.

[Appellant] testified that he had closed his eyes and fired 

the shots in self-defense. He contended that one of the Bowies 

had a gun, but no gun was ever found. The other witnesses 

testified that they did not see any gun other than [Appellant’s] 

during the incident.

On October 23, 2007, this Court imposed an aggregate 

sentence on [Appellant] of twenty-five to fifty years’ 

incarceration. [Appellant] thereafter filed post-sentence motions 

and after they were denied, he filed a notice of appeal to the 

Superior Court. On March 23, 2009, the Superior Court issued a 

memorandum and order affirming the judgment of sentence. 

Commonwealth v. Wright, 972 A.2d 565 (Pa. Super. 2009) 

(Table). [Appellant] thereafter filed a petition for allowance of 

appeal in the Pennsylvania Supreme Court, which denied the 

petition on December 9, 2009. Commonwealth v. Wright, 985 

A.2d 690 (Pa. 2009) (Table).

On September 30, 2010, [Appellant] filed a petition 

pursuant to the Post–Conviction Relief Act. 42 Pa.C.S. 9541 et 

seq. Counsel was appointed and on February 25, 2014, counsel 

filed a no-merit letter pursuant to Commonwealth v. Finley, 550 

A.2d 213 (Pa. Super. 1988); Commonwealth v. Turner, 544 A.2d 

927 (Pa. 1988), and a Motion to Withdraw. This Court, after 

carefully reviewing the record, [Appellant’s] various filings, and 

counsel’s no-merit letter, accepted counsel’s letter and sent 

[Appellant] a Pa.R.Crim.P. 907 notice of dismissal on March 28, 

2014, that advised [Appellant] that his PCRA petition was going 

to be dismissed in 20 days. [Appellant] filed a response to the 

907 notice and after reviewing it this Court granted counsel’s 

motion to withdraw and dismissed [Appellant’s] petition on April 
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29, 2014. Apparently, [Appellant] never received a copy of the 

order dismissing his PCRA petition.

On February 4, 2015, [Appellant] filed a second PCRA 

petition alleging, inter alia, that he never received a copy of the 

order dismissing his PCRA petition.[1] Upon reviewing that 

petition, this Court concluded that it had been untimely filed and 

sent [Appellant] 907 notices indicating the same in October and 

November of 2015. [Appellant] filed a response on January 15, 

2016.

PCRA Court Opinion, 2/4/16, at 1-3.

On February 4, 2016, the PCRA court dismissed Appellant’s second 

PCRA petition as untimely. This timely appeal followed.

Appellant presents the following issues for our review:

I. Whether Appellant’s Instant PCRA Petition Is Timely Filed, 

Where Appellant Has Invoked A Statutorily Enumerated 

Exception To Excuse The Untimeliness Of The Instant PCRA 

Petition?

II. Whether Appellant Is Entitled To The Reinstatement Of His 

PCRA Appellate Rights Nunc Pro Tunc, Following The Dismissal Of 

His Initial PCRA Petition As A Result Of The PCRA Court’s Failure 

To Provide Appellant With A Final Order As Required by 

Pa.R.Crim.P. 907(4)?

Appellant’s Brief at 4 (emphasis in original).

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 

____________________________________________

1

In his second PCRA petition, Appellant sought reinstatement of his 

appellate rights nunc pro tunc. PCRA Petition, 2/4/15, at 5.
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2014) (en banc)). This Court is limited to determining whether the evidence 

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. 

Super. 2012). We grant great deference to the PCRA court’s findings that 

are supported in the record and will not disturb them unless they have no 

support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 

1084 (Pa. Super. 2014).

A PCRA petition must be filed within one year of the date that the 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time 

requirement is mandatory and jurisdictional in nature and may not be 

ignored in order to reach the merits of the petition. Commonwealth v. 

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). A judgment of sentence 

“becomes final at the conclusion of direct review, including discretionary 

review in the Supreme Court of the United States and the Supreme Court of 

Pennsylvania, or at the expiration of time for seeking the review.” 42 

Pa.C.S. § 9545(b)(3). In addition, we are mindful that all requests for 

reinstatement of appellate rights, including PCRA appellate rights, must 

meet the timeliness requirements of the PCRA. Commonwealth v. 

Fairiror, 809 A.2d 396, 397 (Pa. Super. 2002).

However, an untimely petition may be received when the petition 

alleges, and the petitioner proves, that any of the three limited exceptions to 

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), 
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and (iii), is met.2 A petition invoking one of these exceptions must be filed 

within sixty days of the date the claim could first have been presented. 42 

Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the 

PCRA’s one-year filing deadline, “the petitioner must plead and prove 

specific facts that demonstrate his claim was raised within the sixty-day time 

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 

1167 (Pa. Super. 2001).

Our review of the record reflects that the trial court imposed the 

instant judgment of sentence on October 23, 2007. This Court affirmed 

Appellant’s judgment of sentence on March 23, 2009, and the Pennsylvania 

Supreme Court denied Appellant’s petition for allowance of appeal on 

December 9, 2009. Appellant did not seek review in the United States 

____________________________________________

2

 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of the 

claim in violation of the Constitution or laws of this 

Commonwealth or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown 

to the petitioner and could not have been ascertained by the 

exercise of due diligence; or

(iii) the right asserted is a constitutional right that was 

recognized by the Supreme Court of the United States or the 

Supreme Court of Pennsylvania after the time period provided in 

this section and has been held by that court to apply 

retroactively.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
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Supreme Court. Accordingly, Appellant’s judgment of sentence became final 

on March 9, 2010, ninety days after the Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal and the time for filing a petition 

for review with the United States Supreme Court expired. 42 Pa.C.S. § 

9545(b)(3); U.S.Sup.Ct.R. 13. Appellant did not file the instant PCRA

petition until February 4, 2015. Thus, the instant PCRA petition is patently 

untimely.

As previously stated, if a petitioner does not file a timely PCRA 

petition, his petition may nevertheless be received under any of the three 

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. § 

9545(b)(1). That burden necessarily entails an acknowledgment by the 

petitioner that the PCRA petition under review is untimely but that one or 

more of the exceptions apply. Commonwealth v. Beasley, 741 A.2d 

1258, 1261 (Pa. 1999). If a petitioner asserts one of these exceptions, he 

must file his petition within sixty days of the date that the exception could 

be asserted. 42 Pa.C.S. § 9545(b)(2).

Appellant contended that his untimeliness of his second PCRA petition 

should be excused due to the ineffective assistance of his first PCRA counsel, 

who allegedly failed to inform Appellant that his first PCRA petition had been 

dismissed by the PCRA court, thereby denying Appellant his constitutional 

right to an appeal. PCRA Petition, 2/4/15, at Appendix 3. However, an 

assertion that prior counsel’s ineffectiveness resulted in the denial of his 
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second PCRA petition does not satisfy one of the time-for-filing exceptions in 

the PCRA. As our Supreme Court has explained:

It is well settled that allegations of ineffective assistance of 

counsel will not overcome the jurisdictional timeliness 

requirements of the PCRA. See Commonwealth v. Pursell, 

561 Pa. 214, 749 A.2d 911, 915-16 (2000) (holding a 

petitioner’s claim in a second PCRA petition, that all prior counsel 

rendered ineffective assistance, did not invoke timeliness 

exception, as “government officials” did not include defense 

counsel); see also Commonwealth v. Gamboa-Taylor, 562 

Pa. 70, 753 A.2d 780, 785-86 (2000) (finding that the “fact” that 

current counsel discovered prior PCRA counsel failed to develop 

issue of trial counsel’s ineffectiveness was not after-discovered 

evidence exception to time-bar); Commonwealth v. Lark, 560 

Pa. 487, 746 A.2d 585, 589 (2000) (holding that allegation of 

ineffectiveness is not sufficient justification to overcome 

otherwise untimely PCRA claims).

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). 

Accordingly, Appellant’s claim of prior counsel’s ineffective assistance does 

not provide him relief of his untimely filing of the instant PCRA petition.

In addition, we observe that Appellant also asserted that the PCRA 

court did not notify Appellant of the April 29, 2014 dismissal of his first PCRA 

petition. PCRA Petition, 2/4/15, at 4. Assuming for the sake of argument 

that this claim properly raises the timeliness exception of government 

interference, as we previously stated, section 9545 of the PCRA requires that 

“[a]ny petition invoking an exception provided in paragraph [b](1) shall be 

filed within 60 days of the date the claim could have been presented.” 42 

Pa.C.S. § 9545(b)(2). In Commonwealth v. Stokes, 959 A.2d 306 (Pa. 

2008), our Supreme Court reiterated that compliance with the sixty-day rule 
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is mandatory in order to invoke an exception to the PCRA timeliness 

requirements, which “requires a petitioner to plead and prove that the 

information on which he relies could not have been obtained earlier, despite 

the exercise of due diligence.” Id. at 310 (citation omitted).

In addressing Appellant’s failure to exercise due diligence and to file 

the instant PCRA petition sooner, the PCRA court offered the following 

analysis, which we adopt:

Here, [Appellant] failed to establish that he filed his most 

recent PCRA petition within sixty days of the date he could have 

learned through the exercise of due diligence that the order 

dismissing his previous PCRA petition had been entered on the 

court docket as required by 42 Pa.C.S. §9545(b)(2).[3] 

[Appellant’s] most recent PCRA petition is devoid of any 

explanation as to why he did not contact the clerk’s office sooner 

than he did. Clearly, having been sent a Rule 907 notice in 

March of 2014 advising [Appellant] of [the PCRA court’s] 

intention to dismiss his petition in twenty days, [Appellant] was 

effectively put on notice that his petition was going to be 

dismissed. [Appellant], therefore, had an obligation to ascertain 

whether his petition had been dismissed sooner than December 

of 2014.[4] Moreover, given that [Appellant] was able to obtain 

the information pertaining to the dismissal of his previous PCRA 

petition with no difficulty, it is clear that he could have learned of 

the dismissal well prior to the date he filed his most recent PCRA 

____________________________________________

3 As previously indicated, the PCRA court dismissed Appellant’s first PCRA 

petition on April 29, 2014.

4 Specifically, in the instant PCRA petition, Appellant averred that “[i]t wasn’t 

until December 13, 2014, after [Appellant] wrote to the Clerk of Courts of 

the Common Pleas Court of the Philadelphia County requesting a copy of the 

Criminal Docket sheet, that [Appellant] was made aware of the fact that 

[Appellant’s first PCRA petition] had been formally dismissed on April 29, 

2014.” PCRA Petition, 2/4/15, at Appendix 1-2.
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petition. This is not a case where it was impossible for 

[Appellant] to learn of the dismissal of his petition.

PCRA Court Opinion, 2/4/16, at 5. Appellant failed to show that the 

information he relied upon in filing the instant PCRA petition could not have 

been obtained earlier by the exercise of due diligence. 42 Pa.C.S. § 

9545(b)(2). Hence, Appellant failed to meet any of the timeliness 

exceptions, and the PCRA court correctly determined that the instant PCRA 

petition was untimely filed.

In conclusion, because Appellant’s PCRA petition was untimely and no 

exceptions apply, the PCRA court correctly determined that it lacked 

jurisdiction to address the claims presented and grant relief. See Fairiror, 

809 A.2d at 398 (holding that PCRA court lacks jurisdiction to hear untimely 

petition). Likewise, we lack the authority to address the merits of any 

substantive claims raised in the PCRA petition. See Commonwealth v. 

Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to 

a court’s right or competency to adjudicate a controversy.”).

Order affirmed.

Judge Moulton joins the Memorandum.

Justice Fitzgerald notes dissent.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/20/2017